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Court of Criminal Appeal 8 December 1999

R v Wegener

[1999] NSWCCA 405

Drugs
CRIMINAL LAW AND PROCEDURE: SENTENCING PERIODIC DETENTION TWO STAGE PROCESS REQUIRED.

Citation: Wegener v R [1999] NSWCCA 405
Court: New South Wales Court of Criminal Appeal
Date: 8 December 1999
Judge(s): James J; Sperling J

Background

The applicant, a 47-year-old man with no prior criminal history, pleaded guilty in the District Court to supplying cannabis leaf after being intercepted at Sydney's Kingsford Smith Airport carrying 7.5 kilograms of the drug from Adelaide. He had acted as a courier for a promised reward of $1,700. The sentencing judge, Judge Flannery, took into account significant personal hardship including family illness and bereavement, a substantial financial loss through fraud, and compelling character references. His Honour sentenced the applicant to three years' imprisonment to be served by way of periodic detention.

During the sentencing proceedings, before delivering his formal remarks, the judge made comments indicating that the three-year term was longer than what he would have imposed had he been ordering full-time custody. This was because he considered the less onerous nature of periodic detention justified a longer overall term.

The applicant sought leave to appeal on the basis that this approach misapplied the sentencing legislation. The applicant did not contend that the sentence fell outside the proper range for full-time imprisonment; the argument was confined to the methodology the sentencing judge had used.

  • Whether a sentencing court is required, under the Periodic Detention of Prisoners Amendment Act No 43 of 1998, to first determine an appropriate fixed term of imprisonment before then separately deciding whether that term should be served by way of periodic detention.
  • Whether Judge Flannery erred by instead working backwards from the desired mode of custody (periodic detention) and inflating the term to account for its relative leniency.
  • Whether the amended legislation was workable in light of the fundamental disparity between full-time custody and periodic detention.

Decision

James J found it clear from the record that the sentencing judge had not intended to impose a full-time custodial sentence of three years. The judge had in fact calibrated the term upward specifically because it was to be served by periodic detention. Even setting aside the judge's in-court comments, James J considered the objective and subjective circumstances, together with the typical range for this category of offence, made it plain that a three-year full-time term was not what the judge had in mind.

The central point of the appeal turned on the 1998 amendments to the periodic detention legislation. James J held that the amended Act required a two-stage process: the court must first impose a sentence in the ordinary way (that is, fix an appropriate term of full-time imprisonment), and only then may it consider whether that sentence should be served by way of periodic detention. The sentencing judge had not followed this process, and that constituted an error requiring the sentence to be set aside.

Sperling J agreed with James J's orders. He added, however, that the amended legislation appeared to him to be unworkable in practice. Because periodic detention is substantially more lenient than full-time custody for an equivalent term, a sentence fixed as appropriate for full-time custody would almost always be far too lenient if served periodically. Sperling J observed that a court could not ordinarily conscientiously order periodic detention in relation to a sentence properly fixed in the usual way, yet that was precisely what the statute now contemplated.

Sperling J proposed a workable alternative scheme: the court would determine an appropriate term to be served by periodic detention, with a prescribed formula governing any conversion to full-time custody in the event of serious and repeated breach, and with the Parole Board retaining power to intervene in special circumstances.

Orders Made

  • Appeal allowed.
  • The sentence imposed by Judge Flannery was set aside.

(The text provided does not record the precise re-sentencing orders made following the appeal being allowed.)

Key Takeaways

  • The Periodic Detention of Prisoners Amendment Act No 43 of 1998 introduced a mandatory two-stage sentencing process: a court must first fix an appropriate term of imprisonment in the ordinary way, and only then determine whether that term should be served by way of periodic detention.
  • Inflating a sentence to a longer term than would otherwise be imposed, on the basis that it is to be served by periodic detention, constitutes a legal error under the amended framework.
  • Sperling J expressly flagged that the amended legislation appeared unworkable, because a sentence appropriately calibrated for full-time custody will almost never be appropriate if served periodically, given the substantial difference in the burdens each imposes.
  • Pre-sentence remarks made in open court during argument may be examined alongside formal remarks on sentence to understand a sentencing judge's reasoning, although the Court acknowledged this practice raises a question of legitimacy.
  • Earlier Court of Criminal Appeal authority (including R v Sadebath and R v Bang) permitting upward adjustment of a term to account for the lesser severity of periodic detention was overtaken by the 1998 amendments, which altered the proper approach to this mode of custody.

Legislation and Cases Referenced

Legislation
- Periodic Detention of Prisoners Amendment Act No 43 of 1998 (NSW)
- Periodic Detention of Prisoners Act (NSW) (as amended)
- Drug Misuse and Trafficking Act (NSW), ss 29, 32

Cases
- R v Sadebath (Unreported, Court of Criminal Appeal, 14 May 1992)
- R v Bang (Unreported, Court of Criminal Appeal, 1 September 1992)